Twp. of Robinson v. J.M. Esposito , 210 A.3d 1146 ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Township of Robinson :
:
v. :
:
James M. Esposito, : No. 1399 C.D. 2018
Appellant : Argued: May 7, 2019
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: May 31, 2019
James M. Esposito (Esposito) appeals from the September 18, 2018
order of the Court of Common Pleas of Allegheny County (Common Pleas)
dismissing Esposito’s appeal of a February 15, 2018 Magisterial District Court’s
verdict finding Esposito guilty of a criminal summary offense for alleged violations
of the Township of Robinson’s (Township) Zoning Ordinance (Zoning Ordinance).
Upon review, we reverse Common Pleas’ order.
Esposito is President of Capital Builders, Inc. (Capital Builders) and is
a limited partner of E&R Partners, LP (E&R), Capital Builders’ general partner. See
Notes of Testimony, June 26, 2018 (N.T. 6/26/2018) at 5-6; Reproduced Record
(R.R.) at 34a-35a. E&R is the record owner of an office building located at 5852
Steubenville Pike in McKees Rocks, Robinson Township, Pennsylvania (the
Property). Id. On March 25, 2002, Township issued the Property a Certificate of
Occupancy that listed the permitted occupancy as “OFFICE” within a C-2 zoning
district within the Township. See Certificate of Occupancy; R.R. at 107a. Per the
Zoning Ordinance, Township zoning districts designated as “C-2 Community
Commercial District” allow the use of properties therein as, inter alia, a “[b]ank,
professional or medical office.” See R.R. at 28a, 107a & 112a-113a. The Property
houses both Capital Builders and Capital Realty & Funding Corporation (Capital
Realty), a professional real estate business. See R.R. at 112a.
On October 31, 2017, Township’s Solicitor (Solicitor) mailed a letter
to Esposito (the October 31, 2017 Letter) explaining that the Township had learned
that a business called The Counseling Initiative – Pittsburgh (TCI) was operating out
of the Property’s basement. See October 31, 2017 Letter; R.R. at 108a. The October
31, 2017 Letter explained that TCI’s operation, without an occupancy permit,
violated “the Ordinances of the Township of Robinson,” and demanded that TCI
cease and desist operation in the Property within 48 hours of Esposito’s receipt of
the October 31, 2017 Letter. Id. The October 31, 2017 Letter further cautioned
Esposito that, if TCI’s operation did not cease within the allotted 48 hours, “the
Township [would] have no other recourse than to enforce the laws of the Township
of Robinson[.]” Id.
Esposito’s counsel responded to the October 31, 2017 Letter by letter
dated November 2, 2017 (November 2, 2017 Letter). See November 2, 2017 Letter;
R.R. at 110a-111a. The November 2, 2017 Letter characterized the alleged
violations referenced in the October 31, 2017 Letter as “vague and unspecified
ordinance violations” and accused Township of failing to comply with the
enforcement procedures established and required by Pennsylvania law and
Township’s ordinances upon the discovery of an alleged ordinance violation. Id. at
110a.
2
Esposito’s counsel spoke with Solicitor the following day, November
3, 2017, and thereafter sent to Township’s Planning Director a letter (November 3,
2017 Letter) by which counsel intended to comply with Solicitor’s suggestion that
Esposito supply Township with a “Zoning Compliance Letter.” See November 3,
2017 Letter; R.R. at 112a-114a. In the November 3, 2017 Letter, Esposito’s counsel
argued that the inclusion of TCI’s counseling services on the Property did not
constitute a change of use requiring new zoning and occupancy permits. Id. at 112a-
113a.
On November 7, 2017, Solicitor sent another letter to Esposito’s
counsel (November 7, 2017 Letter), this time explaining that Township intended to
immediately file citations against Esposito, E&R, and TCI under Article III –
Administration and Enforcement – of Township’s Code of Ordinances, Sections
300-16, 300-17, and 300-18.1 See November 7, 2017 Letter; R.R. at 115a-145a. The
November 7, 2017 Letter further advised that Esposito needed to apply for a new
zoning permit and receive site plan approval from Township’s Planning Commission
regarding the operation of TCI within the Property. Id. at 116a.
On November 10, 2017, Township’s Code Enforcement Officer filed a
non-traffic criminal citation against Esposito for violation of Township “Municipal
Code Violations, Chapter 300 Zoning Art. III” (Citation). See Citation; R.R. at 8a.
On February 15, 2018, a Magisterial District Judge found Esposito guilty of the
summary offense and imposed a $500.00 fine. See R.R. at 9a-11a.
On March 9, 2018, Solicitor sent a letter addressed directly to Capital
Realty as “record owner” of the Property (March 9, 2018 Letter) demanding that
1
The November 7, 2017 Letter included copies of the allegedly violated local ordinances.
See November 7, 2017 Letter; R.R. at 115a-145a.
3
Capital Realty vacate the Property based on separate reasons concerning fire
inspections and occupancy permits, and threatening the imposition of daily $500.00
fines based on the February 15, 2018 summary conviction. See March 9, 2018
Letter; R.R. at 146a-49a. The March 9, 2018 Letter stated that Capital Realty had
the right to appeal to Township’s Zoning Hearing Board (ZHB) if it believed it was
not in violation of the Zoning Ordinance. Id.
On March 15, 2018, Esposito timely filed a Notice of Appeal from the
February 15, 2018 summary conviction in Common Pleas. See Notice of Summary
Appeal, R.R. at 5a-12a. Common Pleas conducted a hearing on Esposito’s appeal
on June 26, 2018. See N.T. 6/26/2018; R.R. at 30a-71a. Esposito moved to dismiss
the Citation on the bases that (1) the Pennsylvania Municipalities Planning Code
(MPC)2 authorizes the imposition of civil, not criminal, penalties, and (2) Township
filed the Citation without providing Esposito proper enforcement notice. After much
discussion regarding the proper process of a zoning enforcement action, during
which Common Pleas and the parties appeared to agree that the proper procedure for
challenging a zoning enforcement action was to appeal to the ZHB and then to a
different division of Common Pleas, if necessary, 3 Common Pleas did not rule on
the appeal, but continued the matter and directed Esposito to file either (1) an
application for a certificate of occupancy, (2) an application for a zoning permit, or
(3) an appeal to the ZHB to address the alleged violation of the Zoning Ordinance
related to TCI conducting business out of the Property’s basement. See N.T.
6/26/2018 at 36-40; R.R. at 65a-69a.
2
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101-11202.
3
See N.T. 6/26/2018 at 8-12, 21-22 & 27-33; R.R. at 37a-41a, 50a-51a & 56a-62a.
4
On appeal,4 Esposito contends that the citation is invalid because
Township never provided proper notice of its zoning ordinance enforcement action
as required by the MPC. See Esposito’s Brief at 11-17. We agree.
The MPC controls municipal zoning ordinance enforcement in
Pennsylvania and notice requirements therefor. See Section 616.1 of the MPC, 53
P.S. § 10616.1, added by Act of December 21, 1988, P.L. 1329. Where a
municipality alleges a zoning ordinance violation, the municipality must commence
enforcement proceedings by sending a notice as specified in the MPC. See 53 P.S.
§ 10616.1(a) (“If it appears to the municipality that a violation of any zoning
ordinance enacted under this act or prior enabling laws has occurred, the
municipality shall initiate enforcement proceedings by sending an enforcement
notice as provided in this section.”). Section 616.1(c) of the MPC provides that an
enforcement notice must include at least the following six (6) items:
(1) The name of the owner of record and any other person
against whom the municipality intends to take action.
(2) The location of the property in violation.
(3) The specific violation with a description of the
requirements which have not been met, citing in each
instance the applicable provisions of the ordinance.
(4) The date before which the steps for compliance must
be commenced and the date before which the steps must
be completed.
4
“In an appeal from a trial court’s decision in a zoning enforcement proceeding, our review
is limited to determining whether the trial court committed an abuse of discretion or error of law.”
Borough of W. Conshohocken v. Soppick, 164 A.3d 555, 559 n.4 (Pa. Cmwlth.), appeal denied,
176 A.3d 843 (Pa. 2017) (quoting Loganville Borough v. Godfrey, 59 A.3d 1149, 1151 n.4 (Pa.
Cmwlth. 2012)).
5
(5) That the recipient of the notice has the right to appeal
to the zoning hearing board within a prescribed period of
time in accordance with procedures set forth in the
ordinance.
(6) That failure to comply with the notice within the time
specified, unless extended by appeal to the zoning hearing
board, constitutes a violation, with possible sanctions
clearly described.
53 P.S. § 10616.1(c). This Court has determined that the Section 616.1(c)
requirements are mandatory and that notices without all required information do not
satisfy the Section 616.1(c) requirements. Twp. of Maidencreek v. Stutzman, 642
A.2d 600, 602 (Pa. Cmwlth. 1994) (finding that a failure to include citation to
specific ordinance alleged to be violated rendered enforcement notice invalid).
“Once a landowner has been given notice of a zoning violation pursuant to Section
616.1, that landowner can contest the asserted violations only by way of appeal to
the municipality’s zoning hearing board and cannot merely defend the charge when
the municipality seeks ordinance violation fines before a district justice.” City of
Erie v. Freitus, 681 A.2d 840, 842 (Pa. Cmwlth. 1996). However, “[a]
municipality’s failure to comply with Section 616.1 precludes it from seeking
penalties under Section 617.2 of the MPC[5].” Id. Further, “[t]he validity of [an
5
Section 617.2 enumerates the MPC’s enforcement remedies, in pertinent part, as follows:
Any person, partnership or corporation who or which has violated
or permitted the violation of the provisions of any zoning ordinance
enacted under this act or prior enabling laws shall, upon being found
liable therefor in a civil enforcement proceeding commenced by a
municipality, pay a judgment of not more than $500 plus all court
costs, including reasonable attorney fees incurred by a municipality
as a result thereof. No judgment shall commence or be imposed,
levied or payable until the date of the determination of a violation
6
enforcement] notice must be determined from the four corners of the document, and
extrinsic evidence is irrelevant and immaterial.” Twp. of Lower Milford v. Britt, 799
A.2d 965, 971 (Pa. Cmwlth. 2002).
Here, neither of Township’s alleged enforcement notices complied with
the requirements of MPC Section 616.1(c). Initially, the October 31, 2017 Letter
failed to comply with the Section 616.1 notice requirements for multiple reasons.
First, the October 31, 2017 Letter is addressed to Esposito personally. See October
31, 2017 Letter; R.R. at 108a. To the extent Esposito would need to be notified as
“any other person against whom the municipality intends to take action[,]” Township
still would need to address the letter to E&R as the Property’s owner of record. See
53 P.S. § 10616.1(c)(1). It did not.6
by the district justice. If the defendant neither pays nor timely
appeals the judgment, the municipality may enforce the judgment
pursuant to the applicable rules of civil procedure. Each day that a
violation continues shall constitute a separate violation, unless the
district justice determining that there has been a violation further
determines that there was a good faith basis for the person,
partnership or corporation violating the ordinance to have believed
that there was no such violation, in which event there shall be
deemed to have been only one such violation until the fifth day
following the date of the determination of a violation by the district
justice and thereafter each day that a violation continues shall
constitute a separate violation. All judgments, costs and reasonable
attorney fees collected for the violation of zoning ordinances shall
be paid over to the municipality whose ordinance has been violated.
Section 617.2 of the MPC, added by Act of December 21, 1988, P.L. 1329, 53 P.S. § 10617.2(a).
6
We acknowledge that, while it listed Esposito’s address as “5852 Steubenville Pike,” the
October 31, 2017 Letter incorrectly listed the address of the Property in its reference line as “5052
Steubenville Pike.” See October 31, 2017 Letter; R.R. at 108a. However, because multiple other
Section 616.1(c) deficiencies exist in the October 31, 2017 Letter, we need not dwell herein on the
ramifications of this typographical error.
7
Next, regarding specific alleged violations, the October 31, 2017 Letter
merely asserts that Township had learned of TCI’s operation in Property’s basement
and that, without an occupancy permit, such operation constituted “a violation of the
Ordinances of the Township of Robinson.” October 31, 2017 Letter; R.R. at 108a.
This general assertion fails to adequately state any specific violation with a citation
to the applicable provision of the local ordinance allegedly violated, as required by
the MPC. See 53 P.S. § 10616.1(c)(3); Maidencreek, 642 A.2d at 602 (stating that,
“as used in [S]ection 616.1(3),” the term “cite” “means a specific numerical
reference to the ordinance section which the township asserts the landowners have
violated”).
Additionally, the October 31, 2017 Letter provides neither a date before
which steps for compliance must be commenced nor the date before which such
steps must be completed. See October 31, 2017 Letter; R.R. at 108a. Instead, the
October 31, 2017 Letter simply instructs Esposito to cease and desist TCI’s
operation within 48 hours,7 without any dates for either the commencement or
completion of compliance steps, as required. See 53 P.S. § 10616.1(c)(4).
Further, the October 31, 2017 Letter fails to inform Esposito of his right
to appeal to the ZHB within a prescribed period of time per the particular local
ordinance allegedly violated. See October 31, 2017 Letter. The MPC requires such
notification. See 53 P.S. § 10616.1(c)(5). The October 31, 2017 Letter makes no
reference to any appellate rights or procedures beyond contacting Solicitor with any
questions. See October 31, 2017 Letter; R.R. at 108a.
7
While we acknowledge and agree with Township’s argument that a cease-and-desist letter
may function as a Section 616.1 enforcement notice, see Township’s Brief at 9, we note that a
cease-and-desist letter so considered must still comply with the notice requirements of Section
616.1.
8
Finally, to the extent it refers to possible sanctions for failure to comply
with the enforcement notice within a specified time, the October 31, 2017 Letter
states only:
If you do not cease operation within forty-eight (48) hours
of the receipt of this notification, the Township will have
no other recourse than to enforce the laws of the Township
of Robinson which will include, but not be limited to, the
shutting down of this operation.
October 31, 2017 Letter; R.R. at 108a. In addition to arguably indefinitely informing
Esposito about whether a failure to comply actually constitutes a violation of
unidentified sections of the Township Zoning Ordinance, and even assuming it
adequately describes the possible sanctions, this statement fails to notify Esposito
that an appeal to the ZHB extends the compliance time period. See 53 P.S. §
10616.1(c)(6).
For these reasons, the October 31, 2017 Letter does not satisfy the
mandatory enforcement notice requirements of Section 616.1.8
The November 7, 2017 Letter likewise fails to comply with all Section
616.1(c) requirements for notice of an enforcement action. Initially, as with the
October 31, 2017 Letter, the November 7, 2017 letter fails to identify a date by which
Esposito must commence steps for compliance with the allegedly violated ordinance
sections or a date by which such steps must be completed. See November 7, 2017
Letter; R.R. at 115a-16a. Additionally, the November 7, 2017 Letter fails to advise
8
We note that, at the June 26, 2018 hearing before Common Pleas, Solicitor conceded that
the October 31, 2017 Letter “may not have all the qualifications of a zoning enforcement[,]” and
further explained that “[t]hat’s not the point of the letter. It was not a zoning enforcement.” N.T.
6/26/2018 at 28; R.R. at 57a.
9
Esposito of any right to appeal to the ZHB and that a failure to comply with the
alleged enforcement notice within a specified time period constitutes a violation,
with the possible sanctions clearly described. See id. Instead, the November 7, 2017
Letter discusses only the zoning permit application process and the alleged existence
of a site plan approval from 2011. See id.
For these reasons, the November 7, 2017 Letter also fails to satisfy the
mandatory enforcement notice requirements of Section 616.1.9
Because the Township did not comply with the mandatory enforcement
notification requirements of MPC Section 616.1 before issuing the Citation based
on the Zoning Ordinance and seeking penalties under Section 617.2 of the MPC,
Common Pleas erred by dismissing Esposito’s appeal instead of granting the same.
See Freitus. Accordingly, we reverse Common Pleas’ order.10
__________________________________
CHRISTINE FIZZANO CANNON, Judge
9
Because the remaining correspondence between Township and Esposito postdate the
issuance of the Citation, such correspondence could not have served as an enforcement notification
per Section 616.1, and thus need not be examined further by this Court.
10
As a result of our disposition of the notice issue, we need not reach Esposito’s claim
regarding whether Township properly issued a criminal citation in this zoning enforcement matter.
See Esposito’s Brief at 17-24.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Township of Robinson :
:
v. :
:
James M. Esposito, : No. 1399 C.D. 2018
Appellant :
ORDER
AND NOW, this 31st day of May, 2019, the September 18, 2018 order
of the Court of Common Pleas of Allegheny County is REVERSED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge